FOIA Project Annotation: Judge Paul Friedman has ruled that the Executive Office for U.S. Attorneys must continue to disclose most statistical data from its Central Case Management Databases, containing information on civil, criminal, and debt collection cases as well as personnel resource matters, to the Transactional Records Clearinghouse, although it may redact personally-identifying information under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The Justice Department had provided such data to TRAC covering 1974 through 1997, but had withheld certain fields, giving rise to a dispute between the parties. TRAC filed suit in 1998 and in 1999 EOUSA informed TRAC that it would release the database information based on terms in another FOIA suit TRAC had litigated against Justice in the Northern District of New York. By so doing, EOUSA committed itself to releasing the 1974-1997 data again with fewer redactions. TRAC then made a request for data covering the first six months of 1999, but EOUSA denied the request, saying it would not release data until completing a year-end verification process. The agency then questioned whether TRAC qualified for a fee waiver and requested various financial records pertaining to funding and also informed TRAC that it was revamping its guidelines for redaction of the database records, an action that would postpone processing of TRAC's requests indefinitely. TRAC then amended its complaint to include more mid-year data. In a separate action consolidated with its prior suit, TRAC sued the agency after being denied access to monthly data, particularly information in the "program category" pertaining to ongoing investigations. However, by December 2002, EOUSA had released most of the monthly data except for the program category records. Friedman first turned to the agency's claims that a number of data fields containing information captioned as "agency numbers" were protected by Exemption 2 (internal practices and procedures). TRAC contended that the data did not pertain to personnel matters and that it was of public interest, meaning that it could not be considered trivial. Saying that it was a "much closer call than the Department suggests," Friedman agreed with the agency, noting that D.C. Circuit case law on Exemption 2 did not restrict its coverage to personnel-related information. He admitted that disclosure of the information might be helpful to researchers, but he pointed out that "plaintiffs' submissions insufficiently demonstrate how access to the withheld information would assist them in achieving this goal. In any event, whatever limited public interest in disclosure may exist is outweighed by the government's interest in avoiding the significant burden involving in collecting and evaluating this information for release â€" namely, locating and redacting privacy-protected information that is scattered throughout the relevant database fields." The government also claimed that unverified data was protected by Exemption 5 (privileges), a position that seemed directly at variance with the D.C. Circuit's holding in Petroleum Information Corp. v. Dept of Interior, 976 F.2d 1429 (D.C. Cir. 1992). However, during the litigation the agency dropped the Exemption 5 claim and, despite TRAC's argument that such a claim could be raised again in the future without being subject to judicial review, Friedman found that, in the context of this case, the claim was moot. The agency had redacted personal information under Exemption 6 and Exemption 7(C) and before Friedman it suggested that this information was much like the criminal history data at issue in Reporters Committee â€" that even if some of this information was available through the courts' PACER system or agency data made public at the National Archives â€" it was still so difficult to find in public sources that it should remain protected. However, Friedman observed that "information available at the NARA or disseminated over the internet through PACER is decidedly less obscure than 'public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country.' Accordingly, while the Court has determined that disclosure of fields identifying the subject of central case management records compiled for law enforcement purposes would implicate protected privacy interests, it further finds that the interests at stake are significantly less substantial than those at issue in Reporters Committee." He then rejected the government's claim that SafeCard Service's categorical protection for personal information in law enforcement records provided a basis for withholding personal information, noting that the protection "does not apply where plaintiffs are seeking information solely about individuals who have been publicly charged in a criminal case or publicly named in a civil action." But he found that TRAC's public interest argument â€" that disclosure of the personal information would allow for outside scrutiny of the government â€" was too broad and indicated that personally identifying information concerning charges brought by the government could be withheld. However, he noted that individuals who had sued the government were not protected because "all of these records involve instances where individuals voluntarily have chosen to sue the government, thereby effectively waiving any privacy interests relating to the fact that they are in litigation with the government." Friedman also found that, since TRAC was requesting data specifically coded as pertaining to non-individual entities or property, the burden on the agency of disclosing such information would not be overwhelming. The agency claimed Exemption 7(A) (interference with law enforcement investigation or proceedings), Exemption 7(E) (investigative methods and techniques) and Exemption 7(F) (safety of an individual) to withhold information about the lead criminal charge in cases, arguing that such information in combination with other information might tip suspects off to elements of the government's case. Rejecting this argument, Friedman observed that "the Department offers no evidence that there in fact exists any record that has such a combination. To the contrary, the record in this case demonstrates that a substantial if not overwhelming majority of the records do not contain such a combination." However, he allowed the government to withhold information for cases involving terrorism, noting that the D.C. Circuit's ruling in Center for National Security Studies v. Dept of Justice, 331 F.3d 918 (D.C. Cir. 2003), had extended the traditional court deference in national security cases to law enforcement claims involving national security-related investigations. TRAC also made several procedural challenges, claiming that EOUSA's notification letter was inadequate because it did not provide sufficient information about how long the processing of requests might actually take. Disagreeing, Friedman pointed out that the standard notice indicated that large requests would take approximately nine months to process. He indicated that "it is far from unreasonable for the EOUSA to assume that requesters who submit very large requests and who do not contact the EOUSA to narrow their requests agree to a release date of nine months from the date of the notice." He added that "the purpose of the notice requirement â€" as plaintiffs acknowledge â€" is to allow requesters to determine whether they should narrow their requests in order to receive the information more quickly. Plaintiffs, however, do not allege that TRAC would have narrowed any request if the content of the notices that they received had been different." Finally, Friedman concluded that TRAC's challenges to the agency's delays and procedures in making a fee status and fee waiver determination became moot once the agency agreed to waive all fees.
Issues: Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records

FOIA Project Annotation: Judge Paul Friedman has rejected most of the Department of Justice's motion to reconsider his ruling requiring disclosure of large portions of the agency's Central Case Management Databases to TRAC. The agency argued that Friedman had mistakenly assumed the agency claimed that the content of the "criminal lead charge" field of the database was categorically exempt when the agency's position was actually that there was a subset of information in that field that needed redaction. Friedman observed, however, that "the Department is wrong. The Court's Opinion makes plain that it clearly understood this argument when it was made initially and specifically rejected it. Indeed, as plaintiffs point out, a summary of the Department's original argument is set forth in the Courts's [previous] Opinion, and that summary 'corresponds perfectly with the government's current explanations of what it was attempting to argue.' The Department is merely repeating arguments that the Court both understood and disagreed with, and the Department has even less of a leg to stand on at this state under the standards for alteration or amendment of judgment as set forth in Rule 59(e) and the relevant case law." Friedman was more sympathetic to the agency's argument that redaction of only terrorism-related codes in the "program category" field pertaining to ongoing investigations could jeopardize law enforcement efforts. Friedman first rejected the agency's attempt to expand the D.C. Circuit's holding in Center for National Security Studies v. Dept. of Justice, 331 F.3d 918 (D.C. Cir. 2003), to mean that courts should give deference to agencies on all law enforcement matters. He noted that "at most, Center for National Security Studies stands for the proposition that the Department's claim that records were compiled for a law enforcement purpose is entitled to some deference, so long as its proffer in that regard meets the standards set forth in the case law." He indicated that "as for the deference the Department is entitled to in the subset of law enforcement cases that involve terrorism ï¿½" as opposed to law enforcement cases in general ï¿½" Center for National Security Studies does state that the justifications and proffers made by the executive branch are entitled to 'some degree of deference . . .in cases implicating national security.'" The agency essentially made a mosaic argument ï¿½" that redaction of only those codes related to terrorism would lead to the assumption that any such redacted case pertained to a terrorist investigation. Friedman agreed with the agency's concerns, but not its suggested fix ï¿½" to delete all entries in the "program category." He pointed out that "the vast majority of law enforcement investigations do not involve terrorism or otherwise implicate national security, and the vast majority of 'program category' codes do not relate to terrorism or national security. To permit redaction of all 'program category' codes from the records of all ongoing law enforcement investigation there would be to disregard the structure and purpose of the FOIA." To address the agency's concerns, Friedman explained that the agency could redact other information related to those program category entries for terrorism-related investigations so that the details of the investigation could be appropriately protected.
Issues: Exemption 7 - Law enforcement records

MOTION to Stay Consideration of Claims Raised in Plaintiffs' Motion for Summary Judgment Which Are Already Pending Before the Court by DEPARTMENT OF JUSTICE. (Attachments: # 1 Combined Memorandum in Support of Defendant's Motion to Stay and in Opposition to Plaintiffs' Motion to Consolidate)(Tannenbaum, Andrew) (Entered: 03/28/2003)

2003-03-28

6

MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Summary Judgment by DEPARTMENT OF JUSTICE. (Tannenbaum, Andrew) (Entered: 03/28/2003)

2003-04-01

MINUTE ORDER granting 6 defendant's motion for an extension of time up to and including May 9, 2003 in which to file opposition to plaintiffs' motion for summary judgment. Signed by Judge Paul L. Friedman on April 1, 2003. (ma) (Entered: 04/01/2003)

2003-04-07

7

REPLY in support of motion re 4 and Opposition to motion for stay 5 filed by DAVID BURNHAM, SUSAN B. LONG. (Tankersley, Michael) (Entered: 04/07/2003)

2003-04-16

8

REPLY in support of motion re 5 to Stay filed by DEPARTMENT OF JUSTICE. (Tannenbaum, Andrew) (Entered: 04/16/2003)

2003-04-23

9

ORDER that a status conference shall take place on April 30, 2003 at 10:00 a.m. in view of plaintiffs' motion to consolidate this case with related Civil Action No. 00-0211, and defendant's motion to stay four out of the five claims raised by plaintiffs in this action pending disposition of like-issues in Civil Action No. 00-0211. Signed by Judge Paul L. Friedman on April 23, 2003. (ma) (Entered: 04/23/2003)

MINUTE ORDER granting 10 plaintiffs' unopposed motion for continuance of status conference from April 30, 2003 to May 6, 2003 at 9:30 a.m. Signed by Judge Paul L. Friedman on April 28, 2003. (ma) (Entered: 04/28/2003)

2003-05-06

Minute Entry: Status Conference held on 5/6/2003 before Judge Paul L. Friedman: Defendant's Response to Motion for Summary Judgment and Cross Motions due by 5/30/2003; Plaintiffs' Reply to Motion for Summary Judgment and Response to Cross Motions due by 6/13/2003; Defendant's Reply to Cross Motions due by 6/27/2003. (Court Reporter Santa Zizzo.) (bm) (Entered: 05/06/2003)

2003-05-12

11

ORDER granting 4 Motion to Consolidate Cases; consolidating Civil Action No. 00-211 and Civil Action No. 02-2467 for all purposes, including decision on the merits; denying 5 defendant's motion to stay; plaintiffs shall withdraw their motion for summary judgment in Civil Action No. 02-2467 and shall resubmit the motion in accordance with the conditions stated by 5/16/03; defendant shall file its opposition to plaintiffs' motion and its cross motion for summary judgment by 5/30/03; plaintiffs shall file their reply and their opposition to defendant's cross-motion by 6/13/03 and defendant shall file its reply by 6/27/03. Signed by Judge Paul L. Friedman on 5/9/03. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(bm) (Entered: 05/12/2003)

REPLY to 15 in Support of Defendant's Motion for an Extension of Time by DEPARTMENT OF JUSTICE. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(Tannenbaum, Andrew) (Entered: 06/06/2003)

2003-06-09

MINUTE ORDER granting defendant's motion for extension of time up to and including July 11, 2003 to file its reply. Signed by Judge Paul L. Friedman on June 9, 2003. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(ma) (Entered: 06/09/2003)

2003-06-13

17

MOTION for Extension of Time to File Response/Reply as to 12 Amended MOTION for Summary Judgment, 14 MOTION for Summary Judgment by DAVID BURNHAM, SUSAN B. LONG. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(Tankersley, Michael) (Entered: 06/13/2003)

2003-06-16

MNUTE ORDER granting 17 plaintiffs' motion for extension of time to file their opposition to defendant's cross motion for summary judgment and reply in support of plaintiffs' motion for summary judgment up to and including June 16, 2003. Signed by Judge Richard J. Leon for Judge Paul L. Friedman on June 16, 2003. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(ma) (Entered: 06/16/2003)

ORDER granting 20 Plaintiffs' Motion for Leave to File Surreply Addressing New Authority Cited in Defendant's Reply in Support of Defendant's motion for Summary Judgment. Directing that Clerk of Court shall file the surreply brief and its accompanying exhibit attached to plaintiffs' motion this same day. If defendant choose to respond to plaintiffs' surreply, it shall file a response of no more than seven pages on or before 8/20/03.. Signed by Judge Paul L. Friedman on August 11, 2003. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(jwd) (Entered: 08/13/2003)

2003-08-11

22

Surrply addressing new authority cited in defendant's reply in support of defendant's motion for summary judgment by DAVID BURNHAM, SUSAN B. LONG Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(td, ) (Entered: 08/14/2003)

ORDER that on or before November 16, 2005, each party shall file with the Court a notice of no more than ten pages in length, apprising the Court of any recent case law relevant to its arguments as set forth in the briefs. Signed by Judge Paul L. Friedman on November 1, 2005. (MA) Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF (Entered: 11/01/2005)

2005-11-14

26

Unopposed MOTION for Extension of Time to File Notices of Recent Case Law by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(Goitein, Elizabeth) (Entered: 11/14/2005)

2005-11-15

MINUTE ORDER granting 26 defendant's unopposed motion for extension of time up to and including November 30, 2005 for both parties to file notices of recent case law. Signed by Judge Paul L. Friedman on November 15, 2005. Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(MA) (Entered: 11/15/2005)

NOTICE of Recent Case Law by UNITED STATES DEPARTMENT OF JUSTICE Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(Goitein, Elizabeth) (Entered: 11/30/2005)

2006-03-30

29

ORDER granting in part 10 plaintiffs' motion for partial summary judgment filed in Civil Action No. 00-0211, granting in part and denying in part 126 defendant's motion for summary judgment filed in CIvil Action No. 00-0211, granting in part and denying in part 135 plaintiffs' motion for partial summary judgment on the Department's Revised Exemption Claims and plaintiffs' claims concerning notice of delay and fee waiver filed in Civil Action No. 00-0211 granting in part and denying in part 162 plaintiffs' resubmitted motion for summary judgment filed in Civil Action No. 00-0211, granting in part and denying in part 12 plaintiffs' resubmitted motion for summary judgment filed in Civil Action No. 02-2467, and granting in part and denying in part 14 defendant's motion for summary judgment filed in Civil Action No. 02-2467. An opinion explaining the reasoning underlyilng this order will issue shortly. Signed by Judge Paul L. Friedman on March 30, 2006. (MA)Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(MA, ) (Entered: 03/30/2006)

OPINION denying as moot plaintiffs' first motion for partial summary judgment filed in #00-0211, granting in part and denying in part plaintiffs' second motion for partial summary judgment filed in #00-0211 and plaintiffs' motion for summary judgment filed in #02-2467, granting in part and denying in part defendant's motions for summary judgment filed in both #00-0211 and #02-2467. The Court will issue this same date an amended order directing defendant to release specific categories of records in accordance with this opinion. Signed by Judge Paul L. Friedman on September 8, 2006. (MA)Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF (Entered: 09/08/2006) (Entered: 09/08/2006)

Consent MOTION for Extension of Time to File Response/Reply as to 33 MOTION to Alter Judgment MOTION for Reconsideration MOTION for Reconsideration MOTION to Stay MOTION to Stay by SUSAN B. LONG, DAVID BURNHAM. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:02-cv-02467-PLF,1:00-cv-00211-PLF(Nelson, Scott) (Entered: 10/03/2006)

2006-10-04

MINUTE ORDER granting 34 Consent Motion for Extension of Time to Respond to Defendant's Motion for Reconsideration or to Alter or Amend Judgment. Plaintiff shall file a response on or before October 16, 2006. Signed by Judge Paul L. Friedman on 10/4/06. (lcplf1) (Entered: 10/04/2006)

MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Goitein, Elizabeth) (Entered: 10/20/2006)

2006-10-23

MINUTE ORDER granting 36 defendant's unopposed motion for extension of time up to and including November 2, 2006 to file reply in support of motion for reconsideration. Signed by Judge Paul L. Friedman on October 23, 2006. (MA) (Entered: 10/23/2006)

2006-10-23

Set Deadlines: Reply in support of 33 motion for reconsideration due by 11/2/2006. (mm) (Entered: 10/24/2006)

2006-10-24

37

SECOND AMENDED ORDER AND JUDGMENT. Signed by Judge Paul L. Friedman on October 24, 2006. (MA) (Entered: 10/24/2006)

2006-10-25

MINUTE ORDER granting the defendant's consented-to request for a stay; the Court's Order is stayed until 10 days following the Court's resolution of the motion to alter or amend the judgment. Signed by Judge Paul L. Friedman on 10/25/06. (lcplf1) (Entered: 10/25/2006)

2006-11-02

38

REPLY to opposition to motion re 33 MOTION to Alter Judgment, MOTION for Reconsideration, MOTION to Stay filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Declaration of Christopher Jeffries)(nmw, ) (Entered: 11/03/2006)

2007-02-02

39

ORDER granting in part and denying in part 33 Motion to Alter Judgment, granting in part and denying in part 33 Motion for Reconsideration, granting in part and denying in part 33 Motion to Stay. Signed by Judge Paul L. Friedman on February 2, 2007. (MA) (Entered: 02/02/2007)

OPINION granting in part and denying in part defendant's motion for reconsideration of the court's opinion and order of 9/8/06 or in the alternative to alter or amend the judgment in this case. Signed by Judge Paul L. Friedman on February 2, 2007. An order consistent with this opinion will issue this same day. (MA) (Entered: 02/02/2007)

2007-02-12

41

Consent MOTION to Stay Pending Consideration of Whether to Appeal and Pending Any Appeal by UNITED STATES DEPARTMENT OF JUSTICE. (Tannenbaum, Andrew) (Entered: 02/12/2007)

2007-02-13

MINUTE ORDER granting 41 defendant's consent motion for a stay pending consideration of whether to appeal and pending any appeal. Signed by Judge Paul L. Friedman on February 13, 2007. (MA) (Entered: 02/13/2007)

2007-04-03

42

NOTICE OF APPEAL as to 31 Order, 39 Order on Motion to Alter Judgment,, Order on Motion for Reconsideration,, Order on Motion to Stay, 37 Order by SUSAN B. LONG, DAVID BURNHAM. Fee Status: Fee Not Paid. Parties have been notified. (td, ) (Entered: 04/04/2007)

2007-04-04

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 42 Notice of Appeal (td, ) (Entered: 04/04/2007)

Joint MOTION for Extension of Time to Defer Fee Issues Until Resolution of Appeals by SUSAN B. LONG, DAVID BURNHAM, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Nelson, Scott) (Entered: 06/04/2007)